DEVAKI PILLAI Vs. GOURI AMMA

JUDGEMENT

(1.) This second appeal is filed by the plaintiff in a suit which was originally filed for fixation of boundary and later converted into recovery of possession. In this second appeal, the only question to be considered is with respect to a pond existing on the north - western portion of the plaintiff's property. Though there was a dispute with regard to a mango tree situated on the boundary of the plaintiff's property, the learned counsel for the appellant did not press that point in the second appeal.

(2.) With regard to the pond in question, the Trial Court originally denied the relief to the plaintiff and directed the boundary to be fixed on the eastern side of the pond and excluding the pond from the plaintiff's ownership and possession. The plaintiff filed an appeal and the appellate court remanded the case to the Trial Court. The appellate court observed that the learned Munsiff accepted Ext. C2 plan and he was of opinion that the survey demarcation in Ext. C2 plan is correct. Since the plaintiff did not care to amend the plaint by adding the relief for declaration to the effect that the pond, mango tree and the blue shaded portion in Ext. C2 plan belonged to her and are in her possession or in the alternative for recovery of possession if they are found to be in possession of the defendants and to fix the boundary, an opportunity was given for that purpose by remanding the suit to the Trial Court.

(3.) The Trial Court found that the oral evidence of PW. 1 will go to show that the plaintiff or PW. 1 has never enjoyed the pond and the western levelled up portion which is a portion of plaint A - schedule item No. 1. The Trial Court found that possession however long may be is insufficient to prescribe title unless there is animus to adverse to the true owner. It was observed that the defendants have not adduced evidence to establish the plea of adverse possession. It was also noted that there was no plea in the written statement that the pond came within plaint A - schedule item and it was being enjoyed by the defendants with the knowledge of the true owner hostile to their title.